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Clarke, Bruce; Kapnoullas, Steve --- "When is a Signed Document Contractual? - Taking the 'Fun' out of the 'Funfair'" [2001] QUTLawJJl 4; (2001) 1(1) Queensland University of Technology Law and Justice Journal 39

[*] Bruce Clarke Deputy Head of Studies, Swinburne University of Technology, LLM, BEc, GradDipMktg (Mon); Stephen Kapnoullas Senior Lecturer in Law, Swinburne University of Technology, LLM, BA, DipEd (Melb).

[1] L’Estrange v Graucob [1934] 2 KB 394 at 403 per Scrutton LJ.

[2] Nevertheless, the law recognises some exceptions including non est factum, misrepresentation and, in limited circumstances, mistake. In addition, the expanded doctrine of ‘unconscionability’ has also emerged as an exception to the rule in L’Estrange v Graucob by recognising the undesirability of enforcing a contract (even if it has been signed) in circumstances where to do so would be manifestly unfair: see Commercial Bank of Australia Ltd. v Amadio [1983] HCA 14; (1983) 151 CLR 447. This issue is discussed briefly later in this article.

[3] A Mason & S J Gageler in ‘The Contract’ in P D Finn, Essays on Contract, 3rd edn Law Book Co 1987 at 1.

[4] See Life Insurance Co. of Australia Ltd. v Phillips [1925] HCA 18; (1925) 36 CLR 60.

[5] [1930] 1 KB 41.

[6] In George Mitchell (Chesterhall) Ltd v Finney Lock Seeds Ltd [1982] EWCA Civ 5; (1983) 1 QB 284 at 296-7.

[7] Supra n 3 at 11-12.

[8] S Graw, An Introduction to the Law of Contract, 3rd edn Law Book Co 1998 at 181.

[9] [1998] 4 VR 661.

[10] Ibid at 662.

[11] Le Mans Grand Prix Circuits Pty Ltd v Iliadis, supra n 9 at 663.

[12] The full text of the document is set out at 669 of the court’s judgment.

[13] Supra n 11.

[14] Ibid at 664.

[15] [1986] HCA 82; (1986) 161 CLR 500.

[16] Reference is also made by his Honour, at 666, to Causer v Browne [1952] VR 1.

[17] D W Greig & J L R Davis, The Law of Contract, Law Book Co Sydney 1987 at 605.

[18] Ibid at 611.

[19] J R Spencer, ‘Signature, Consent and the Rule in L’Estrange v Graucob[1973] CLJ 104.

[20] Ibid at 105.

[21] Supra n 11 at 667.

[22] Ibid.

[23] Ibid at 668.

[24] Ibid.

[25] Ibid at 670.

[26] Ibid at 671.

[27] Ibid.

[28] Ibid.

[29] [1971] VicRp 92; [1971] VR 749.

[30] [1986] WAR 131.

[31] Supra n 11 at 672.

[32] Supra n 3 at 133.

[33] [1983] HCA 5; (1983) 151 CLR 422.

[34] [1988] HCA 32; (1988) 165 CLR 197 at 228.

[35] [1989] QB 433.

[36] Supra n 11 at 674.

[37] Ibid at 676.

[38] Ibid at 667.

[39] [1975] HCA 55; (1975) 133 CLR 125 at 142.

[40] (1978) 83 DLR (3d) 400.

[41] Ibid at 408-9.

[42] [1951] 1 KB 805.

[43] (1986) ATPR 40-693.

[44] [1992] FCA 206; (1992) ATPR 41-171.

[45] In this context a ‘consumer’ is a person who acquires services at a price which does not exceed $40,000, or if the price exceeds $40,000 the services are of a kind which are ordinarily acquired for personal, domestic or household use or consumption: s 4B(1)(b).

[46] Supra n 2.

[47] Section 51AB(5).

[48] (1991) ATPR 41-104.

[49] Ibid at 52,622.

[50] The same thing could be said about the plaintiff in the George Collings case, which is the reason why the decision in that case is open to some criticism.

[51] Supra n 19 at 116. Although Tadgell JA refers to Spencer’s criticism it is unfortunate that his Honour does not give any clear indication as to whether he endorsed the authors’ view. Tadgell JA felt there was no need to do so because of his ultimate finding that there was no contractual relationship between the parties.

[52] [1994] FCA 1206; (1994) ATPR Digest 46-134.

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